Summary: The new EIA Regulations which came into force on 16 May 2017 introduce new requirements on local authorities and developers. Environmental statements for major developments can be a source of unforeseen costs, delays and objector legal challenges. However, with proactive forward planning and engagement with local authorities, developers can keep things sensible and proportionate and mitigate these risks.

Keeping schemes on track

The word “juggernaut” derives from the annual procession of enormous, decorated chariots carrying the statues of gods at the Jagannath Temple in India, which in ancient times risked crushing onlookers. For many developers promoting major schemes, however, the concern is that the environmental impact assessment process itself (known as “EIA”) risks turning into an enormous juggernaut spiralling out of control.

In force under UK Regulations and EU Directives, this process to ensure that projects likely to have significant effects on the environment are subject to an environmental assessment before being authorised can cause unforeseen delays and costs. Environmental statements, where required, are also the most complex of the documents required in an application for planning permission or development consent. They have proven one of the most fertile sources of third party legal challenge.

New sets of EIA Regulations[1] came into force on 16 May this year for the standard planning system as well as the development consent regime, implementing a 2014 European Directive. This blog sets out some ideas on how developers’ professional teams can take proactive steps with relevant authorities to keep schemes on track in compliance with some of the key new Regulations.

The elephant in the room

First of all – Brexit does not mean that the EIA Regulations are likely to be diminished any time soon, if at all, just because the UK is mandated to have these as a result of EU Directives. Many people consider that EU law has been a positive influence on UK environmental legislation over the last 40 years. Few politicians will relish taking them on. In any case, the closer the UK wishes to be to the Single Market, the more likely that European Directives, like the EIA Directive, will remain in force in some form or another.

Life after assessment

Ongoing monitoring and remediation requirements are commonly imposed by local authorities on sensitive sites via Section 106 obligations, which can have effect years after an environmental statement has fulfilled its primary purpose of assisting decision-making at the planning stage. However, possibly the biggest change in the new EIA Regulations is that decision-makers must now specifically consider whether it is appropriate to impose “monitoring measures” on EIA development, including whether to secure “potential remedial action” should identified mitigation prove ineffective. So, whilst not mandatory, a robust committee report or decision will need at least to record that it has considered the appropriateness of monitoring measures.

How long is a piece of string?

There will be discussions with authorities about what monitoring should look like and how it is to be secured. The EIA Regulations clarify the following:

only significant adverse effects require monitoring

the type of parameters and duration of monitoring must be proportionate

measures should not duplicate existing arrangements under other UK regulatory regimes

monitoring measures will be secured by planning conditions or planning obligations (whose terms are already governed in UK law by specific policy, statute and case law).

Every scheme will need a bespoke approach but it should usually be straightforward to agree measures for a scheme’s construction period. Compliance is regularly required with construction and environmental management plans which provide for dust, noise and vibration monitoring. For very intensive stages of the development, monitoring reports might be submitted to authorities more often than otherwise. Authorities will welcome clear formats, such as a table with columns setting out adverse effects identified in the environmental statement, the mitigation proposed, the mitigation carried out, the effectiveness of mitigation and any residual effects.

Developers are already familiar with some long-term monitoring of operational effects, e.g. the re-assessment of travel plans. But the EIA Regulations do not mean it is suddenly necessary or proportionate, for example, for a properly funded and constituted estate management company to have to report on an ongoing basis that it is managing public open space. Professional teams will need to resist the monitoring of operational effects being open-ended and make developers aware of all cost and resourcing implications.

Planning obligations should create mechanisms for agreeing alternative mitigation measures with the local authority, in case mitigation proposed at the planning stage does not prove effective. Equally, where appropriate, planning obligations should require mitigation steps to be taken only if particular monitoring triggers are met.

Monitoring measures cannot be used to remedy any inadequacies in environmental statements.

Competence

The new EIA Regulations require developers to ensure that their environmental statement is prepared by “competent experts”, to ensure its “completeness and quality”. Decision-makers must have access to sufficient expertise to examine an environmental statement, take into account “where appropriate” their “own supplementary examination” and integrate a reasoned conclusion on the significant effects of the proposed development into their decision.

Dust off the CVs

There is already a “flight-to-quality” on major schemes, with developers instructing established and experienced environmental consultants. It will now be sensible for the CV of the lead author of each technical chapter of environmental statements to be appended, setting out not only formal qualifications but also an overview of the type and scale of projects undertaken by the wider practice to demonstrate applicable expertise. It will also be helpful to summarise quality assurance procedures, e.g. the role of other team members and confirmation that the lead author has reviewed and approved all work.

One would expect the Courts to adopt existing case law on the competency of expert witnesses in the wider civil field. The classic formulation of that is whether the witness has acquired, by study or experience, sufficient knowledge of the subject matter to render their opinion of value in resolving issues before the court. Ultimately, the environmental statement will be adequate or not. If it is adequate, it will not add much to a judicial challenge to argue that the expert was not competent, other than in extreme cases.

If a job’s worth doing…

The new EIA Regulations are also likely to accelerate the trend of Local Planning Authorities instructing independent consultants to critique environmental statements, and to require that developers meet the costs of this through planning performance agreements. Developers may benefit from environmental consultants, with experience of both sides of the fence, reporting to authorities on the key issues, as this should speed up decision-making and add robustness against third party legal challenge.

It will also make it a false economy to submit a planning application with a flawed environmental statement. Even if an authority can be persuaded that issues have been resolved, third party objectors may take advantage of the independent expert analysis.

Nothing new under the sun

Amongst other things, the new EIA Regulations now specifically require an environmental statement to describe the likely significant effects of the development on the environment resulting from the risks to human health and cultural heritage, as well as the development’s vulnerability to risks of major accidents and disasters. If these risks and their associated effects were relevant to a scheme they should be dealt with anyway. Developers should simply sign-post authorities to where these issues are considered in the usual chapters on (for example) air quality, noise and vibration, contamination, socio-economics, archaeology and built heritage.

Just because these matters are independently referred to in the new EIA Regulations should not be a pretext for potentially unnecessary assessments. The statutory requirement remains that it is the “likely significant effects” of a development which must be described, a term on which has generated much case law. Where applicable, it should therefore be clarified at the scoping stage that there are not likely to be significant effects over and above those to be considered in standard chapters.

In the same vein, some have argued that the new EIA Regulations require an assessment of scheme alternatives. In fact, they require a description only of the reasonable alternatives actually studied by the developer. It will be a matter of fact and degree when a brainstormed idea becomes an alternative, but, as a rule of thumb, if a project team gave the thought more than a cursory consideration before discounting it, it might become an alternative to be described. And it is always prudent at least to list the thoughts not considered even to be an alternative and, briefly, why. Note, though, that the EIA regime aside there may be circumstances where alternatives need to be assessed, e.g. in demonstrating a case for compulsory purchase powers.

The more things change, the more they stay the same…

As with the old EIA Regulations it is open to developers to engage at an early stage with authorities and statutory consultees to ensure that what is required is sensible, proportionate and lawful in the circumstances. Steps like those described in this blog will be all the more necessary whilst the new Regulations bed down. Environmental assessment will always require careful consideration but it need not be an out-of-control juggernaut.

This blog reflects insights shared at a breakfast seminar on 9 November 2017 by Tim Smith, Sarah Fitzpatrick and Sheridan Treger of Berwin Leighton Paisner; Hannah Fiszpan and Patrick Duffy of Waterman Infrastructure & Environment; and Jeremy Pike of Francis Taylor Building

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